Lawyers, Far From Gulf, Skirmish on Spill Claims

Friday

Jul 30, 2010 at 5:09 AM

There may be no tar balls in Boise, but it figures large in the suits against BP as lawyers meet there to decide where the cases should be heard.

JOHN SCHWARTZ

BOISE, Idaho — This city, more than 1,500 miles from the Gulf of Mexico, may seem like an unlikely place for lawyers to gather to argue about the fate of hundreds of federal lawsuits related to the oil spill.

But Boise is where the federal Judicial Panel on Multidistrict Litigation was scheduled to meet this month — it gathers in different locations around the country throughout the year — and so this is where lawyers had to fly to make their case about where all the oil spill lawsuits should be consolidated.

“This must be the biggest thing to hit Idaho since ‘Napoleon Dynamite,’ ” one lawyer joked, referring to the 2004 cult comedy set in the state.

Choosing the right venue for the cases, to avoid any potential conflicts of interest for the judges or jurors, is essential, Elizabeth J. Cabraser, a California lawyer who also represented plaintiffs in the Exxon Valdez oil spill, told the judges.

“The entire country has watched this disaster 24/7,” she said. “This is the highest-profile litigation that’s ever been in this country, and is going to require a jurist who is above reproach.” Ms. Cabraser suggested that the case be heard in Gulfport, Miss., which she said would be convenient for many of the plaintiffs.

The panel of seven judges is expected to issue a decision in August.

Over the course of 90 minutes, 23 lawyers spoke in rapid-fire presentations — the judicial equivalent of speed-dating — with each making a case for a location, and sometimes a particular judge. Arguments were made for Texas, Louisiana, Florida, Mississippi, Alabama and even South Carolina.

Some of the lawyers, particularly those working for the oil industry, favored Houston, a city that many oil companies call home. “It meets all the characteristics the panel has traditionally looked at,” argued Andrew J. Langan, a lawyer for BP.

Lawyers on the plaintiffs’ side suggested that Houston might be overly kind to the defendants.

Russ Herman, a major litigator of mass torts, said that his home state, Louisiana, “the place that has suffered the most, deserves to have the scales balanced.”

“You have the opportunity to focus the world and the country on the disaster, so it will not happen again — and assist us,” he thundered.

Ervin A. Gonzales, a Florida lawyer, argued that “clearly, Louisiana is the most affected state, but there may be appearances of conflict” for judges and jurors. He suggested Miami.

Another lawyer, Perry Weitz, from New York, argued in favor of recruiting Judge Shira A. Scheindlin of Federal District Court in Manhattan, who has experience in complex cases, to New Orleans.

Allan Kanner, a New Orleans lawyer representing Louisiana, argued that his city was “the geographical center of gravity” for the cases. “If after 9/11, if this panel had sent all those cases from New York to Houston,” he said, “I think the public would have been outraged.”

Several federal judges in New Orleans have had to remove themselves from cases because of conflicts of interest, like investments or family involvement in cases. But those advocating for New Orleans spoke highly of Judge Carl Barbier.

Judge Barbier is already hearing many spill cases and has survived defendants’ efforts to have him removed over accusations of conflict of interest. He owned oil industry bonds, but sold them before the cases were well under way; the Court of Appeals for the Fifth Circuit rejected attempts to take him off the cases.

Judge John G. Heyburn II of Federal District Court in Kentucky, the head of the panel, brushed aside the suggestion that a judge’s location might unduly influence his actions. “Time after time they’ve proven they can do that in a fair way,” he said.

The cases could also be split up among several judges, with lawyers suggesting that one could handle death and personal injury claims from those aboard the Deepwater Horizon rig and perhaps the claims of economic loss, another could handle the complaints of BP shareholders who lost money, and another could take on environmental cases.

In her presentation, Ms. Cabraser warned of the bitter experience of litigating over the Exxon Valdez. Many of her clients died before getting their money from the company. “Time is the enemy here,” she said.

For its part, BP clearly prefers that most of those affected by the spill seek compensation from the $20 billion fund set aside for economic damages that is being run by Kenneth R. Feinberg instead of from the courts.

After the hearing, Ha Nguyen, a plaintiff who owns a shrimp boat in Lafourche Parish, said her top priority was quick disposition of the case. “I want to see the process go quickly,” she said. “I want to see justice.”

The lawyers left the courtroom in a festive mood, flattering and insulting each other with genial familiarity.

“You are the Superman of the Justice League!” Mr. Herman said to W. Mark Lanier, a plaintiffs lawyer who wants the cases heard in Houston, his home. (In an interview, Mr. Lanier noted that he had won many cases against oil giants in Houston, and said, “Houston jurors hate big oil, and think they’re all dirty.”)

Mr. Herman, who argued for New Orleans, pulled a reporter close, and stage-whispered loudly enough for Mr. Lanier to hear, “He’s one of the four or five best lawyers in the country.”

Pausing for effect, he added, “and we’re going to be so happy to see him ply his trade in Louisiana.”